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Videotaping in IME – E.D. Tenn

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  • Videotaping in IME – E.D. Tenn

    Here’s a new case out of the Eastern District of Tennessee titled Lisa House v. Unum Life Insurance Company of America. In this matter, Unum directed Ms. House to attend an IME. She showed up for the IME with a friend to act as a witness and intended to videotape the doctor’s examination. The doctor refused and sent her away. Ms. House notified Unum that she would attend an IME as long as she was allowed to have a witness and videotape it. Unum refused her demands and stated that she is not allowed to impose any preconditions to the IME. Because of this, the plaintiff filed suit claiming that administrative remedies would have been futile.

    Most unfortunately, the court disagrees.

    The ultimate issue before the Court is rather simple. Ms. House believes that she should be entitled to have a witness attend and videotape the independent medical examination required by Unum's ERISA plan documents. Because the plan documents are silent on the issue of the third party witness and the videotaping, Ms. House argues that it is a matter of statutory construction as to whether such a right is somehow implicit under ERISA law. Unum argues that it is a matter of contractual interpretation of the terms of Unum's ERISA plan documents.

    By presenting the issue in this case as a matter of statutory construction, it appears that Ms. House is attempting to place a square peg in a round hole so that she can avail herself of the futility exception. The question as to whether Ms. House should be permitted to bring a third party witness to monitor and videotape her independent medical examination is first and foremost a matter of contractual interpretation of the terms of Unum's ERISA plan documents. The Court finds that it would not be futile for Ms. House to exhaust Unum's administrative requirements and, if necessary, obtain a review of this issue (i.e., monitoring and videotaping by a third party witness) by Unum's plan administrator. And, in fact, to file this lawsuit before Unum was able to complete its administrative review of the claim subverts the exhaustion requirement and ERISA's goal of efficient and cost-effective resolution of claim disputes. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F. 3d 609, 618 (6th Cir. 1998).
    I think the court clearly got this one wrong and I am hopeful that the plaintiff here appeals. I run into this issue frequently and I do not think the court necessarily framed it correctly. I approach these claims as arguing that Unum is refusing to provide a full and fair review and because of their refusal to allow for a full and fair review as required by ERISA, they have, indeed, made the appeal futile. This is one where I would truly like it reversed. I think it is both fair for the insurers and the insured, on top of whatever safety concerns that the individuals undergoing the IME should and rightfully do have. The opinion is attached below.

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